Opinion
B217688
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE BOBADILLA, Defendant and Appellant.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, and Marc A. Kohm Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA307385)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Johnson, Judge. Affirmed.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, and Marc A. Kohm Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Jesse Bobadilla, was charged with murder. On the day before trial, appellant announced he was planning to substitute retained counsel with another attorney and sought a two-week continuance. The trial court did not rule on appellant's request and stated that appellant's new counsel must appear the next day to discuss the issue. The following morning, on the first day set for trial, a representative for appellant's new counsel appeared and requested a continuance to prepare for trial. His originally retained attorney was delayed The trial court denied the request, and appellant was represented at trial by his originally retained counsel. Appellant was convicted of murder. On appeal, he argues he was denied due process and his right to counsel because his originally retained counsel was not present at the hearing on substitution of counsel. Appellant also argues the court abused its discretion in ultimately denying his request, again denying him due process and his right to counsel. Finally, he contends his right to be present at a critical stage of the proceeding was violated when the attorneys announced they were ready for trial in his absence. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
In April 2007, appellant was charged with murdering Anthony Gonzalez on or about August 5, 2006. It was alleged that appellant personally used and discharged a firearm, and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang.
Appellant privately retained Walter Urban as his counsel. The matter was set for pretrial on May 23, 2007 and trial on June 20, 2007 in Department 124. On May 23, 2007, the pretrial conference was taken off calendar and the trial date remained. On June 20, 2007, at defense request, the matter was continued for trial to August 16, 2007. On August 16, 2007, again upon defense motion, the matter was continued for trial to September 25, 2007. The court also issued a body attachment to Melinda Marquez, a witness to the shooting, compelling her to appear. The attachment remained until Marquez appeared in court on January 10, 2008.
On September 25, 2007, good cause was found for a continuance to October 24, 2007. On October 24, 2007, attorney Urban was engaged in another trial and appellant's matter was trailed to October 25, 2007. On October 25, upon defense motion, the trial was again continued, this time to November 28, 2007. On November 28, 2007, the matter was trailed to December 4, 2007. On that date, again at the defense's request, the matter was continued for trial to January 10, 2008.
The record does not state which party moved for the continuance.
On January 10, 2008, the matter was transferred from Department 124 to Department 100 for trial on January 17, 2008. Marquez appeared in court, her body attachment was recalled and she was ordered to return on January 17. On January 17, 2008, in Department 100, the prosecution moved for a continuance pursuant to Penal Code section 1050, subdivision (g), and the matter was continued to February 5, 2008. The court issued another body attachment to Marquez to appear on February 5.
On February 5, 2008, the attorneys appeared in Department 100 and answered ready for trial. The trial was transferred to Department 108 and jury selection was scheduled to begin in that department the next day. Appellant was not present in court when this occurred. Later that morning, on February 5 in Department 108, attorney Urban notified the court that appellant would like to address the court. The court asked: "Is this a complaint against [attorney Urban] or any kind of matters that would be confidential?" Appellant responded no and requested a two-week continuance to retain a new attorney. He explained: "My family's barely looking for it. I don't know if they talked to somebody else. He was supposed to show up today, but he didn't." The trial court stated that it did not want to "delay things with this uncertainty" but that it would give the new attorney an opportunity to speak on the following day. The court informed appellant that the trial proceedings would commence at 10:00 a.m. the next morning, and that the replacement attorney must be present at 9:30 a.m. Marquez was ordered to be on call to the prosecution.
The following morning, Rabin Nabizadeh, an associate of Jilbert Tahmazian, appeared in court. Nabizadeh stated he was an associate of Tahmazian, who was appellant's newly retained counsel, and that attorney Urban was "stuck in Compton" and would not be in court that morning. He then moved to be substituted into the case on behalf of Tahmazian, and requested a March 6, 2008 pretrial date. The prosecutor opposed the continuance, stating the crime occurred a year and a half earlier and that "[t]his appears to simply be an effort to delay the proceedings." She also stated: "I have great concerns for the safety of my witnesses as well as simply needing to get finished. The victim's family has been coming to court." Nabizadeh responded that appellant and his relatives were concerned with attorney Urban's trial preparation and lack of communication.
The court began by clarifying that "I, yesterday, was under the mistaken impression that [Urban] was a court-appointed attorney, which is why I asked [appellant] if he had complaints about [attorney] Urban when [attorney] Urban told me that [appellant] wanted to address the court . . . I was wrong about that. [Attorney] Urban was privately retained, so obviously [appellant] has the right to select whoever he wants as his attorney." Nonetheless, the court denied the motion, stating that "this is a very old case," the prosecution has an interest in an expedient proceeding and that "[e]verybody has known, including [appellant] and his family, what the status of the case was; that it would be going to trial at this time." The court also addressed the difficulty in securing Marquez's appearance, though it noted that Marquez appeared and was placed on call to the prosecution The court concluded, nonetheless, that "there have been very considerable difficulties in getting the case to trial, both from the court's standpoint and from the standpoint of securing necessary witnesses." Accordingly, the court stated that it would permit the substitution of counsel only if Tahmazian would be prepared for trial with a one- or two-day continuance. Nabizadeh stated that his associate would not be able to represent appellant under those circumstances. The court held that attorney Urban would remain as counsel of record, but "[i]f Mr. Tahmazian talks with [attorney] Urban or whatever and finds out more and is prepared to accept the substitution under those conditions, then you're welcome to come back and we'll discuss it."
The court stated it was unsure whether Marquez was in custody when it placed her on call. The record reflects she was not.
Jury selection commenced later that day and attorney Urban represented appellant throughout trial. Appellant was found guilty of murder with a true finding on all the special allegations. He was sentenced to state prison for a total of 50 years to life. This timely appeal followed.
DISCUSSION
I
Appellant argues the court denied him due process and his right to counsel by refusing to grant a continuance to substitute retained counsel. We do not agree.
A criminal defendant has a due process right to discharge his retained attorney at any time, with or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 984 (Ortiz) ["While we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation [citations], or that he and the attorney are embroiled in irreconcilable conflict [citation], we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel."].) However, a trial court may deny the request where it would significantly prejudice the defendant or if it is untimely and would result in an unreasonable "'disruption of the orderly processes of justice.'" (Id. at p. 982.) When deciding whether to grant such a request, the court must balance the defendant's interest in new counsel against the disruption that would result from the substitution. (People v. Turner (1992) 7 Cal.App.4th 913, 919.) In doing so, the court "must exercise its discretion reasonably: 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.'" (Ortiz, supra, 51 Cal.3d at p. 984.) An improper denial of a defendant's right to discharge retained counsel is never a harmless error and results in automatic reversal. (Id. at p. 988.)
Appellant argues the trial court did not properly discuss the Ortiz factors when ruling on his request, and that even if it did, it abused its discretion in denying the request. We do not agree. On February 5, the court mistakenly believed attorney Urban was appointed counsel but did not deny appellant's request when he stated he had no complaints against attorney Urban. The court declined to rule on the request until appellant's new attorney appeared in court the next day. Although the court did not cite Ortiz, the record demonstrates that it properly discussed the standard outlined in that case and did not abuse its discretion in finding that appellant's situation did not warrant a continuance. The court stated the case was very old, noting that the crime occurred back in August 2006 and briefly recounting the procedural history. It declined to delay the trial more than another day or two, stating that "[e]verybody has known, including [appellant] and his family, what the status of the case was; that it would be going to trial at this time." Though not explicitly using the word "timely," the court clearly references the timing of the request in the context of the lengthy procedural history.
Appellant asserts, without support from the record, that attorney Urban's lack of preparation did not become critical until he announced on February 5, 2008 that he was ready for trial. While the proceeding was less than a year old, 18 months had passed since the crime occurred. During that period, appellant's matter was set for trial 10 times, continued six times, and trailed twice. Most of those continuances were at appellant's request. The record does not demonstrate that at the February 6 hearing appellant was purposefully attempting to delay the proceedings, since the last granted continuance was requested by the prosecution. But the record does support the court's conclusion that appellant and his family should have known the status of the proceeding by the February trial date. It follows that appellant had ample opportunity to evaluate attorney Urban's preparation and decide to obtain new counsel. Even after the January 17, 2008 proceeding in which the matter was set for trial for a ninth time, appellant had several weeks before the February trial date to make a request, but did not.
The court also discussed the difficulties the prosecution had in securing Marquez's appearance. Appellant notes that Marquez appeared in court, the body attachment was recalled, and she was ordered to be on call to the prosecution. He argues that if the court was still concerned with Marquez's appearance, it would have put her in custody rather than placing her on call. Appellant provides no support for the assertion that opting not to place a witness in custody indicates a lack of concern about his or her appearance after a further lengthy postponement of the trial. Thus, given the procedural history of the case, the court did not abuse its discretion in finding that a lengthy continuance would unreasonably disrupt the proceedings.
Appellant cites People v. Lara (2001) 86 Cal.App.4th 139(Lara),to support his position. The case is inappropriate. In Lara, as soon as the court convened the trial proceedings, defendant's retained counsel informed the court about a possible conflict between himself and his client. The court conducted a closed Marsden hearing and invited defendant to speak. Defendant stated that his counsel never spoke with him about the trial before that day and that they disagreed about certain witness strategies. (Lara, supra, at pp. 146-147.) The court found the conflict was a "'tactical difference'" that did not constitute a fracture of the attorney-client relationship required under Marsden. (Lara, at p. 148.) The trial proceeded and defendant was found guilty. Defendant filed a motion for a new trial based on ineffective counsel. The motion was denied. (Id. at p. 149.) On appeal, defendant argued the trial court erroneously handled his pretrial request to discharge his retained counsel as a Marsden motion. The appellate court agreed, finding that a Marsden hearing is improper when a defendant seeks to replace retained counsel. (Lara, at pp. 153, 155.) The court held that Ortiz, supra, 51 Cal.3d 975, established the proper method to evaluate defendant's request. (Lara, at pp. 153, 155.) Thus, the trial court did not err in applying the Ortiz factors. Rather, it failed to exercise its discretion under Ortiz because it improperly applied Marsden and did not reach the Ortiz factors. (Lara, supra, at p. 166.)
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
II
Appellant argues he was denied due process and the right to counsel because attorney Urban was not present at the hearing at which a substitution of counsel was requested.
Criminal defendants have a Sixth Amendment right to counsel at all critical stages of the prosecution. (People v. Santos (2007) 147 Cal.App.4th 965, 972.) The denial of counsel during a critical stage of the proceeding "mandates a presumption of prejudice because 'the adversary process itself has been rendered 'presumptively unreliable.'" (Roe v. Flores-Ortega (2000) 528 U.S. 470, 483.) We agree with courts that have held a hearing to substitute counsel is a critical stage of the proceeding implicating the Sixth Amendment. (See United States v. Wadsworth (9th Cir. 1987) 830 F.2d 1500, 1510 [hearing to substitute appointed counsel a critical stage because "[a]t issue was the right of the defendant to have counsel at trial and time to prepare his defense"].) The record in this case demonstrates that appellant was represented by an attorney when requesting a substitution of counsel. Although attorney Urban was not present, Nabizadeh, acting on behalf of Tahmazian, appeared in court and requested a continuance to be substituted in as counsel. Appellant argues that since the trial court ultimately denied Nabizadeh's request Nabizadeh was not acting as appellant's counsel at the February 6 hearing. But Nabizadeh appeared in court, requested what appellant was seeking and advocated appellant's position. In response to the prosecutor's argument that appellant was simply trying to delay the proceedings, Nabizadeh briefly stated appellant's concerns with attorney Urban and argued that appellant's request was "not just an effort to delay something that's inevitable." Moreover, in response to the court's statement that this was a "very old case," Nabizadeh argued that it was not very old for a murder case and that it "would be irresponsible for us to take a murder case with one day preparation . . . ." Thus, Nabizadeh argued on behalf of appellant and the court's denial of the continuance did not precede or preclude its discussion with Nabizadeh, but rather, was the result of that very discussion.
III
Finally, appellant argues his right to be present at a critical stage of proceedings was violated when the matter was sent out for trial in his absence.
"A criminal defendant, broadly stated, has a right to be personally present at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment; the due process clause of the Fourteenth Amendment itself; section 15 of article I of the California Constitution; and sections 977 and 1043 of the Penal Code." (People v. Waidla (2000) 22 Cal.4th 690, 741.)
However, "under the Fourteenth Amendment's due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a 'stage . . . that is critical to [the] outcome' and 'his presence would contribute to the fairness of the procedure.' [Citation.]" (People v. Waidla, supra, 22 Cal.4th at p. 742.) Similarly, under section 15 of article I of the California Constitution and sections 977 and 1043 of the Penal Code, a defendant is not entitled to be personally present during proceedings which bears no reasonable, substantial relation to his or her opportunity to defend the charges against him. (Ibid; see also People v. Ervin (2000) 22 Cal.4th 48, 74.) The burden is on the defendant to demonstrate that his or her absence from the proceeding prejudiced the case or denied him or her of a fair and impartial trial. (People v. Horton (1995) 11 Cal.4th 1068, 1121 ["The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant's opportunity to defend . . . and nothing in the present record indicates that defendant's personal presence would have assisted the defense in any way. The lack of replication of the witnesses' original intonations and presentation, of which defendant complains, would not have been altered by defendant's presence, and his suggestion that the jury might have been favorably influenced by defendant's reactions to the reading back of the testimony is entirely speculative."].)
Appellant argues that his absence prejudiced his defense because he was not able to communicate sooner his request to substitute counsel. But he does not carry his burden of showing that the trial court would have granted appellant's request had he been present when the matter was sent out for trial, and thus, his assertion is merely speculative. (See People v. Horton, supra, 11 Cal.4th at pp. 1120-1121.) The record, as we have seen, indicates that the court would have denied the request if granting it would require further substantial delay. The attorneys announced they were ready for trial on February 5, 2008, in the absence of appellant. That same day, appellant appeared in court and first mentioned that his family was searching for a possible replacement for attorney Urban. The court declined to rule on the matter until the new counsel appeared in court the next day. Appellant offers no argument as to why the trial court would have responded any differently had appellant introduced the issue a few hours earlier. Nabizadeh appeared in court the next day and requested a March 6, 2008 pretrial date. As noted above, the court denied the request out of various concerns, none of which would have been cured by appellant's presence at the previous day's calendar meeting.
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J. We concur: WILLHITE, J. MANELLA, J.